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It happens time and time again. A client seeks counsel on a particular employment issue having nothing to do with a wage and hour claim. Yet, wage and hour concerns soon become the center of our discussion and the business realizes that potential wage and hour claims far overshadow the biggest employee issues the company thought it had.

Wage and hour class action lawsuits are as active as ever in California and the risk of wage and hour litigation forces many businesses to settle claims at a higher value than the underlying claim dictates. Businesses do this out of concern that if a claim gets too far, the haphazard timekeeping and non-compliant break issues that I see on a daily basis will come to light. But there is hope!

Business owners who educate themselves about California’s meal and rest break laws and who work hard to create compliant policies and procedures, while ensuring that those they’ve charged with implementing the policies and procedures are likewise educated, remain in the best defense position. But it doesn’t end there. Employers must be vigilant about reviewing time records every payroll period to ensure that there is follow-through, and that the policies and procedures that they’ve worked so hard to create are carried out.

As a refresher, here are the meal break rules for non-exempt employees in California…

If an employee works more than five hours in a day, s/he must receive a minimum 30-minute unpaid, uninterrupted meal break.
This meal break should start no later than the end of the fifth hour of work.

Start of Shift

First Meal Period Should Begin No Later Than

8:00 a.m.

12:59 p.m.

9:00 a.m.

1:59 p.m.

If an employee works more than 10 hours in a day, s/he must receive a second unpaid, uninterrupted meal break of at least 30 minutes.
This second meal break must start no later than the end of the tenth hour of work.
Employees should not perform any work during the meal period and be free to leave the worksite.
Employees who work no more than six hours in a workday may voluntarily waive their first meal break.
Employees who work no more than 12 hours in a workday may waive their second meal break, as long as they took their first meal break.

Each day that an employer fails to provide an employee with a compliant meal period, the employee is due a meal break premium equal to one additional hour of pay at the employee’s regular rate. This payment must be included in the employee’s next paycheck.

Failure to pay a meal period premium can lead to more problems, including incurring potential waiting time penalties that are calculated at the employee’s daily rate of pay, multiplied by the number of days that the employee was not paid correctly, up to 30 days. The employee might also claim s/he received inaccurate wage statements, allowing the employee to seek up to $4,000 in penalties. Such violations also expose the Company to potential class action and Private Attorney General Act (PAGA) lawsuits which further aggravate the problems.

If you haven’t reviewed your timekeeping and break policies recently, or have been less than diligent about reviewing time records on a regular basis to ensure meal break compliance, every effort should be made so that it is a top priority.

Colleen M. McCarthy, Esq. is a Partner and chairs the Firm’s Employment Practices Group. She has dedicated her practice to representing and protecting employers, with a particular emphasis on risk mitigation through preventative counseling and sound practical advice. For 15 years, Ms. McCarthy has counseled employers about the complicated employment laws that impact their businesses to ensure that they are in compliance, and to reduce the chance of costly litigation. Ms. McCarthy may be reached by phone at (949) 608-6900 or email cmccarthy@ferruzzo.com